Citation Nr: 1428511
Decision Date: 06/24/14 Archive Date: 07/03/14
DOCKET NO. 08-20 779 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for a low back disability.
2. Entitlement to service connection for a respiratory disability, described as asbestosis or asbestos exposure during service.
3. Entitlement to service connection for a respiratory disability, to include residuals of pneumonia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
Stanley Grabia Counsel
INTRODUCTION
The Veteran served on active duty from November 1965 to November 1967.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007 and October 2008 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA).
In April 2011, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge. A written transcript of this hearing has been associated with the claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing must fully explain the issues and to suggest the submission of evidence that may have been overlooked. In the present case, the undersigned fully identified the issues on appeal and asked specific questions directed at identifying any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding and might substantiate the claims currently on appeal. Additionally, neither the appellant nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, there is compliance with the duties set forth in 38 C.F.R. § 3.103(c)(2).
The Board in June 2011 reopened the issues of entitlement to service connection for low back and respiratory disabilities and remanded the issues to the RO for additional development.
In Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009), the Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. A review of the claims file shows that the Veteran has been variously diagnosed as having interstitial lung disease, and residuals of pneumonia. The Board therefore finds that while the Veteran claims service connection for a respiratory disease, as a result of asbestos exposure; his claim is not limited solely to asbestosis and asbestosis related respiratory disease, and must be developed to encompass the claim for residuals of pneumonia to include aggravation of the pre-service residuals of pneumonia during service. The record reveals that the Veteran had a history of pneumonia prior to service as well as pneumonia during service. As these are two distinct disorders relating to the Veteran's reported symptoms, the Board has split the issue, denying the claim for asbestosis or asbestos exposure during service; and remanding the claim for service connection for a respiratory disorder, to include residuals of pneumonia. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009).
Thus, the claim is recharacterized as two separate claims as reflected on the title page of this decision.
In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file indicates that there is relevant information to the Veteran's current claims and such evidence has been considered accordingly.
The issue of service connection for a respiratory disorder, to include residuals of pneumonia is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
FINDINGS OF FACT
1. The Veteran does not have any identified residuals of asbestos exposure.
2. Arthritis of the lumbar spine was not shown in service or within the first post-service year, and a low back disability is not related to a disease, injury, or event in service.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for residuals of asbestos exposure have not been satisfied. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).
2. A low back disability was not incurred in or aggravated by active service, and may not be presumed to have been incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).
The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002).
As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1).
VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. In this appeal, August 2007 (low back) and August 2008 (respiratory disorder) pre-rating letters provided notice to the Veteran regarding the information and evidence needed to substantiate claims for service connection for a back disorder and a respiratory disorder. The letters also informed the Veteran of what information and evidence must be submitted by him, and what information and evidence would be obtained by VA.
The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters herein decided. Pertinent medical evidence associated with the claims file consists of the service treatment records and the report of the VA examination, as well as the Veteran's private and VAMC treatment records. Also of record and considered in connection with the appeals are various written statements provided by the Veteran, his spouse and his representative, as well as a buddy statement. The Board finds that no additional RO action to further develop the record in connection with claims decided herein, prior to appellate consideration, is required.
In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran was notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between him and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Service Connection-general criteria
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).
Certain diseases, to include arthritis may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Additionally, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Thus, the Veteran can establish service connection if there is a continuity of symptomatology since service for chronic diseases.
Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d).
If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.
III. Respiratory disorder, to include as secondary to asbestos exposure.
In cases involving asbestos exposure, the claim must be analyzed under VA administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). Although there is no specific statutory or regulatory guidance regarding claims for residuals of asbestos exposure, VA has several guidelines for compensation claims based on asbestos exposure. See M21-1, VBA Adjudication Procedure Manual M21-1 Manual Rewrite (M21-1 MR), Part IV, Subpart ii, Ch. 2, Section C, Topic 9 and Section h (Dec. 13, 2005).
The guidelines in the M21-1 MR provide that the latency period for asbestos-related diseases varies from 10-45 years or more between first exposure and development of disease. The guidelines identify the nature of some asbestos-related diseases. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. See M21-1MR, IV.ii.2.C.9.b.
Additionally, the Board must follow development procedures specifically applicable to asbestos-related claims. Ashford v. Brown, 10 Vet. App. 120, 124-25 (1997). VA must determine whether military records demonstrate evidence of asbestos exposure during service, whether there was pre-service or post-service occupational or other asbestos exposure, and whether there is a relationship between asbestos exposure and the claimed disease.
At the April 2011 Videoconference hearing the Veteran testified that he seeks service connection for a respiratory disorder, to include as secondary to asbestos exposure. He alleges that he was exposed to asbestos as a result of living in World War II era barracks during service which contained asbestos.
He maintains that he was treated in Ft. Carson, Colorado, in 1966 for 10 days for pneumonia. He currently has a diagnosis of interstitial lung disease. The Veteran seeks service connection for a respiratory disorder on the basis of asbestos exposure.
In June 2010 and January 2012 VA examinations, the Veteran reported a cough since service which occurs daily, with occasional sputum production; and, shortness of breath (SOB) after walking 1/2 mile. He first became aware of a chest abnormality in May 2003 after a routine X-ray screening for asbestos while employed in his high school district revealed interstitial lung disease consistent with asbestosis.
The VA examiner noted that X-rays in May 2003 revealed "14mm intrahilar opacity"; June 2002 X-rays revealed cardiomegaly and COPD changes; July 2004 X-rays revealed clear lungs, without evidence of pulmonary masses or pneumonia. The impression was, "No active cardiopulmonary disease." A July 2004 CT scan with contrast showed several small subcentimeter noncalcified pulmonary nodules in the lungs of indeterminate etiology, calcified granuloma in lingual, and chest otherwise unremarkable; and, a March 2005 X-ray was read as, "normal chest x-ray."
The examiner summarized that the Veteran had been diagnosed with a mild restrictive pulmonary disease, which most likely can be attributed to prior pulmonary scarring, such as an infectious process. The service medical records do not demonstrate any radiologic changes associated with pneumonia. The examiner opined that it cannot be stated without resulting to mere speculation whether the current restrictive pulmonary disease had its onset during active duty, or whether it was due to or a result of disease or injury incurred therein.
The Veteran has not identified any diseases or disabilities that may be associated with asbestos exposure. Moreover, the evidence of record including the VA examinations in June 2010 and January 2012 has identified no evidence of asbestosis. There is no evidence of record showing that asbestos fibers in the lungs have been detected, that the Veteran has asbestosis, or that the Veteran has any other disease or injury associated with asbestos exposure. Accordingly, service connection may not be established for asbestos exposure in the absence of a current disability related to such exposure. See Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also Shedden, 381 F.3d at 1166-67 (holding, in pertinent part, that service connection requires evidence of a current disability and a nexus between that disability and a disease, injury, or event during service).
Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for residuals of asbestos exposure, must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.
IV. Low back disorder
The Veteran is seeking service connection for a low back disability. At the April 2011 video hearing, the Veteran stated he twice injured his back during military service. He stated he initially injured his low back when he slipped on ice while marching, and later further aggravated this injury by carrying heavy military equipment such as radios. The Veteran stated his military occupational specialty (MOS) was communications, and he was responsible for carrying the radio equipment.
A review of the service treatment records reveals a complaint of back pain in March 1967. This was diagnosed as back pain due to coughing secondary to pneumonia during service. There was no report, treatment, or diagnosis of any low back injury, or condition during service.
Subsequent to service in September 1968 the Veteran underwent an employment examination which identified class III narrowing L5-S1 joint space. It did not note any evidence of a back injury or residuals thereof.
A July 1975 Texas Workmen's Compensation claim record revealed that in April 1974 the Veteran injured his back lifting an air driven tool, when he felt a lightning like pain in his back and right leg. A myelogram in June 1974 revealed a ruptured disc and he underwent surgery in August 1974. The examiner noted the Veteran had multiple back complaints and he may have had some sort of arthritis affecting all of the joints in his back.
In an October 2005 letter the Veteran claimed that he sustained a low back injury when he fell while marching in service.
A June 2008 VAMC treatment record noted chronic low back pain, SP laminectomy. There was deformity of L2-L3 facet joint with bulbous appearance of facets which may be congenital or reactive bone formation, and DDD L5-S1.
A September 2008 VAMC CT scan revealed normal lumbar spine alignment; multi-level degenerative changes in the lumbar spine vertebrae and discs consistent with posterior disc bulge, anterior osteophyte formation, facet joint hypertrophy and ligamentous hypertrophy.
The service treatment records are negative for complaints, treatment, or diagnosis of a low back disorder. The only service treatment records referring to the low back were the single entry noting back pain associated with pneumonia and coughing.
There is no medical evidence referring to any in service back injury, nor is there any medical opinions associating any current back condition to service.
The only evidence of a back injury is the July 1975 Workmen's Compensation examination noting an April 1974 industrial back injury, almost eight years after service.
As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated arthritis of the lumbar spine to a compensable degree within one year of discharge from active duty. As such, service connection cannot be granted on a presumptive basis under 38 U.S.C.A. § 1112.
With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2013). Currently, there is no medical evidence of record indicating that the Veteran suffered a lumbar spine injury in service and no medical evidence of record relating a current diagnosis of a lumbar spine disability to service.
The Board acknowledges the Veteran's contentions that he has a low back disorder as a result of his active duty service. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).
The Veteran is competent to maintain that he has experienced low back pain continuously since service, as this complaint is certainly capable of lay observation. The Board, however, finds that the cause of his currently diagnosed lumbar spine disability is not capable of lay observation. Specifically, the Board finds that, as a lay person, the Veteran is not competent to opine as to why his currently diagnosed lumbar spine disability would be due to an in-service accident that occurred in 1965. This is because he does not have training in musculoskeletal disabilities. As such, although the Veteran's opinion is provided some weight as to duration of his symptoms, his opinion is afforded little weight in the analysis of whether a nexus between his current lumbar spine disability and his service exists.
To the extent that the Veteran's statements may be taken as an argument in favor of continuity of symptomatology pertaining to his lumbar spine disability since service, such theory requires that there be a showing of a chronic disease in service. Such is not the case here. Rather, there is no manifestation whatsoever of a lumbar disability in service. Furthermore, while the Veteran is competent to report such symptoms now, the Board finds that his current reports of having those symptoms continuously since service are not credible. Although the Veteran reported back pain associated with coughing, he gave no indication of a lumbar spine injury, such as a fall or any other low back pain at any point during service. Moreover, the claims file contains no evidence of a low back complaint until April 1974, almost 8 years after his discharge from service. These first complaints were not attributed to any in service injury, but instead to an industrial accident lifting heavy equipment. As such, the Board finds these statements regarding continuity of symptomatology not credible.
As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a low back disability must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure is denied.
Entitlement to service connection for a low back disability is denied.
REMAND
The Board has framed the issue on appeal as entitlement to service connection for a lung disorder, to include residuals of pneumonia. The Veteran testified that he was treated in Ft. Carson, Colorado in 1966 for 10 days for pneumonia. The record also reveals a history of pneumonia twice as a child. He currently has a diagnosis of interstitial lung disease, and residual interstitial scarring. The Board finds the further development is necessary regarding the Veteran's claim.
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under Section 1111 requires the government to show by clear and unmistakable evidence both that (1) the Veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The Federal Circuit noted that the lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F. 3d 1089, 1096-97 (Fed. Cir. 2004).
Although the issue was initially framed as entitlement to service connection for a lung disorder resulting from asbestos exposure, the records revealed the pre-service diagnosis of pneumonia and onset of pneumonia during service. The June 2011 Remand asked the VA examiner to consider any plausible theory of entitlement. Unfortunately, the ensuing examination in January 2012, while noting the pre-service history of 2 bouts of pneumonia during childhood; the treatment for pneumonia during service; as well as current interstitial lung scarring as a residual of a previous infection; failed to determine whether the Veteran's pre-service condition of pneumonia was aggravated during service; or the etiology of the present residual interstitial scarring, and whether it preexisted service or was the result of the pneumonia during service.
On remand, an opinion should be obtained addressing the aforementioned concerns. In so doing, the examiner should provide a detailed rationale for the opinions reached with citation to the evidence of record when appropriate.
When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the deficiencies, a new opinion with a different VA examiner should be provided to determine the etiology of any current respiratory conditions, taking into account the pertinent evidence.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC shall associate with the claims file, physically or electronically, all records pertaining to the Veteran's residuals of pneumonia from all sources including VA Medical Centers since January 2012. If there are any records that cannot be obtained, advise the Veteran of this fact, of the efforts made to obtain the records, and any further efforts to obtain them.
2. The RO or AMC must give the claims file to an appropriate VA examiner to provide an addendum opinion regarding the nature and etiology of the Veteran's respiratory disorders, including residuals of pneumonia and the identified interstitial scarring. If the examiner determines that an additional examination is necessary, an examination to address the below questions should be scheduled.
The examiner must review the entire claims file, including a copy of this remand and after clearly identifying any current respiratory conditions or residuals thereof) answer the following questions for each respiratory condition:
(a) Did the Veteran's claimed respiratory condition clearly and unmistakably pre-exist service?
(b) If the answer to (a) is "yes," did the respiratory condition clearly and unmistakably NOT undergo an increase in severity beyond natural progression during service?
(c) If the answer to (a) is "no," is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's currently diagnosed respiratory condition is caused by or etiologically related to his active service?
(d) If the answer to (a) is "no," is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's currently diagnosed respiratory condition is caused by or aggravated by the Veteran's service connected pneumonia?
In addition to residuals of pneumonia, comment on other pertinent respiratory diagnoses such as interstitial lung disease, interstitial lung scarring, chronic obstructive pulmonary disorder, etc.
The examiner should reconcile any opinion with all other clinical evidence of record. A complete rationale should be provided for any opinion expressed.
3. The RO or AMC should then readjudicate the claim in light of all of the evidence of record on the merits. If the claims remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs